Ministers' decision to stop $2.5-billion open-pit gold and copper project failed test of 'procedural fairness,' judge says
Prospects for a proposed open-pit gold and copper mine in northern B.C. improved this week after a B.C. Supreme Court justice turfed a previous decision by two senior provincial government ministers to reject the project.
Pacific Booker Minerals Inc. asked the B.C. Supreme Court in April to overturn Environment Minister Terry Lake and Energy, Mines and Natural Gas Minister Rich Coleman's rejection last September of its $2.5-billion mining project, located 65 kilometres north of Smithers at Morrison Lake. In a decision released Monday, Justice Kenneth Affleck set aside the ministers' decision, raising the possibility the mine could yet proceed.
"(The) ministers' decision refusing to issue the certificate failed to comport with the requirements of procedural fairness," wrote Affleck in his decision, which awarded costs to the company.
The decision placed weight on recommendations that the executive director of the Environmental Assessment Office provided to the ministers before they made their decision - recommendations that did not support the project going forward, and that the company did not have a chance to respond to.
"The petitioner was encouraged to participate at every step and had been kept informed of the concerns of others," wrote Affleck. "Its complaint is that in the final crucial stage of the referral to the ministers, when the executive director firmly put his thumb on the scale, the petitioner could not see that he had done so, let alone (have) the opportunity to attempt to restore the balance."
Affleck ordered the ministers to reconsider the application, and ruled the company be entitled to review and respond to recommendations by the executive director.
John Hunter, counsel for Pacific Booker, told The Sun the company would be very pleased with the decision.
"We're not back all the way to square one, because the company has this clean (environmental) assessment, but we're at a position where the ministers have to reconsider whether they're going to grant that certificate. Hopefully they come to a different decision this time."
Hunter explained that the company had participated in a significant environmental assessment process involving provincial and federal agencies in the lead-up to the ministers' consideration of the Morrison mine.
"In the course of that process, environmental issues were identified and the company was asked to make changes," he said. When the company made changes, others would be identified - ones the company also addressed. "This went on for quite a while."
In many cases, environmental assessments conclude that projects, should they go ahead, would produce some environmental consequences that cannot be mitigated.
Not in this case, said Hunter. "At the end of it, (the company) got what we characterized as 'a clean assessment,'" he said. "The assessment said that, provided the company did what it said they were going to do, there would be no significant adverse effects. ... I think the company thought they were pretty home free."
But instead, the ministers rejected the proposed project.
Affleck's judgment overturning the province's decision on the Morrison mine proposal is a rare occurrence but a critical decision for the mining industry, according to Gavin Dirom, CEO of the Association of Mineral Exploration, B.C. "I think this is a very important judgment," Dirom said. "This is about due process, this is about the rule of law."
Dirom was among industry observers who reacted with surprise more than a year ago when the province rejected Pacific Booker's application for an environmental certificate. He added that the province's rejection didn't "appear to represent a science-based decision, and we were concerned about its transparency, its logic and its fairness."
Reached Monday evening before he had a chance to read the full decision, Dirom said Affleck's judgment "appears to represent a fair and reasonable outcome based on the importance of upholding due process and the rule of law in this country."
Karina Brino, CEO of the Mining Association of B.C., also welcomed Affleck's decision if it helps clarify the rules for mine proponents contemplating entering the environmentalapproval process.
"This is a very important decision if it is going to allow the proponent to engage in further conversations with the province about what kind of information was missing from the first time around," Brino said.
She added that the environmental assessment process is strict and rigorous, and to get to the verge of a decision "you would assume the proponent has done the work to get to the final submission," and the whole industry needs to "better understand how to get to positive decisions in a timely fashion."
Brino added that she was as surprised as anyone with the Morrison mine's rejection and she wants to take a closer reading of Affleck's judgment to see how it improves the industry's understanding of its position in relation to the overall process.
"Obviously the process has been of concern to us in terms of everything that led up to the very last-minute decision," Brino said. "There were indications that everything was fine (with Pacific Booker's application)," she said. "Mitigation measures were accepted by the Environmental Assessment Office until the very last minute."
David Crebo, a spokesman with the ministry of environment, said the government had received a copy of Affleck's ruling. "This is a complicated matter and we are reviewing the ruling so we can understand all aspects of it," he said.
"We will not be in a position to comment on the ruling or our next steps until we have completed our review and had a chance to speak with our legal counsel."