Mining Inspector Not Required to Consider Climate Change in Granting Permit for Rock Quarry

In Highlands District Community Association v. British Columbia (Attorney General), 2021 BCCA 232, the BC Court of Appeal reviewed a decision of the BC Mines Inspector to grant a permit to O.K. Industries Ltd. to operate a rock quarry located in the District of Highlands, a community northwest of Victoria, BC. The Highlands District Community Association (“HDCA”), a society which aims to represent the interests of residents of the Highlands, sought judicial review of the decision, arguing that the Inspector’s decision was unreasonable because the Inspector failed to consider the climate change impacts of the quarry. The chambers judge refused to overturn the Inspector’s decision (see 2020 BCSC 2135).

The Court of Appeal unanimously agreed with the chambers judge that the Inspector’s decision was not unreasonable and dismissed the appeal. The Court held that the applicable statutes only mandated consideration of climate change impacts for quarries larger than the one proposed by O.K. Industries, noting that the HDCA’s concerns about climate change as a cumulative result of many smaller projects were best addressed by the legislature, not on judicial review.

The Permit Decision

There was considerable public opposition to the quarry and several environmental assessments were conducted and provided to the Inspector. Notably, there were no reports addressing climate change impacts. The Inspector granted the permit. In the detailed reasons provided, the Inspector concluded that there were no health, safety, economic or environmental grounds to deny a permit, and the most relevant concerns about impact had been adequately addressed by conditions attached to the permit. With respect to climate change, the Inspector stated:

… Another issue raised was the impact of carbon emissions related to a quarry at this location and the impacts on global climate change. While this is an important issue and Canada has passed a non-binding motion to declare a national climate emergency in Canada, climate change is not relevant under the Mines Act.

The Lower Court Decision

On judicial review, the HDCA argued the Inspector had, by failing to consider climate change, improperly narrowed the scope of their discretion and therefore made an unreasonable decision in granting the permit. The chambers judge disagreed, noting that the applicable statutory scheme under the Mines Act referred to various environmental impacts from mining (such as land and watercourses), but notably did not address climate change. The chambers judge noted the quarry was not large enough (a proposed 150,000 tonnes in maximum annual production) to engage the provisions of the Environmental Assessment Act [EAA], which mandate a more expansive environmental assessment including consideration of greenhouse gas emissions for quarries with annual production capacities of 250,000 tonnes or more.

Decision on Appeal

The Court of Appeal dismissed HDCA’s appeal, largely for the same reasons as the chambers judge. While it was true that the Inspector’s statement “climate change is not relevant under the Mines Act” was overbroad, the Court agreed the Inspector was not required under the statutory scheme to address climate change in making their decision (the Court did not take issue with the idea that the Inspector could have considered climate change). Thus, the Inspector appropriately exercised their discretion in accordance with their statutory mandate.

The Court approved of the chambers judge’s reference to the EAA provisions, which are only engaged for larger quarries. The Court pointed out that the Mines Act, unlike the EAA, did not mandate consideration of specific factors such as greenhouse gas emissions. The Court noted the existence of other provincial statutes that expressly address climate change, while the Mines Act does not.

The Court also pointed to the fact that there was no evidence put before the Inspector of potential climate change impacts of the project, and to ask him to assess climate impacts without scientific evidence would essentially require him to conduct his own investigation.

The Court held that although Canada has international obligations regarding climate change, these obligations do not need to be considered by all decision-makers regardless of their statutory authority. Here, the statutory authority gave the Inspector broad discretion to consider relevant factors, and it is not the role of the Court to mandate consideration of a specific issue like climate change.

The Court concluded by citing a passage of HDCA’s submissions, which argued that the issue of climate change is a cumulative one, contributed to by many seemingly minor projects such as the one under consideration. While the Court did not disagree, it held this concern went beyond the Inspector’s authority under the Mines Act and was instead an issue better addressed to the legislature:

[61]      In my view, this is a submission that seeks a legislative response to a problem of global magnitude but provides no basis for this court to intervene.

The Supreme Court of Canada denied HDCA’s application for leave to appeal.

If you have any questions about the article, please contact Scott Harcus.

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