Friends of Davie Bay v. British Columbia et al., (2012) 325 B.C.A.C. 71 (CA)

• Judge: Saunders, Lowry and Bennett, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 18, 2012
• Jurisdiction: British Columbia
• Citations: (2012), 325 B.C.A.C. 71 (CA);2012 BCCA 293

Davie Bay v. B.C. (2012), 325 B.C.A.C. 71 (CA);

    553 W.A.C. 71

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. JL.008

Friends of Davie Bay (appellant/petitioner) v. Her Majesty the Queen in Right of the Province of British Columbia and Lehigh Hanson Materials Ltd. (respondents/respondents)

(CA039058; 2012 BCCA 293)

Indexed As: Friends of Davie Bay v. British Columbia et al.

British Columbia Court of Appeal

Saunders, Lowry and Bennett, JJ.A.

June 29, 2012.

Summary:

Lehigh Hanson Materials Ltd. proposed to build and operate a limestone quarry in Davie Bay that would have a "production capacity" of 240,000 tonnes of product per year, which was 10,000 tonnes below the threshold which the Reviewable Projects Regulation required an environmental assessment to be carried out. Several individuals and the Friends of Davie Bay requested an environmental assessment, asserting that, inter alia, if the quarry operated at maximum capacity, it would exceed the 250,000 tonne threshold. The Minister of Environment accepted the recommendation of the Environmental Assessment Office (EAO) that an assessment not be ordered. The Friends of Davie Bay applied for judicial review, seeking (a) a declaration that Part 3, Table 6 of the Regulations required an environmental assessment for a new construction stone and industrial mineral quarry when the infrastructure investment, equipment, operational plan and size of a proposed quarry and its reserves indicated that the project would have the ability to produce an output that exceeded the defined capacity of 250,000 tonnes per year; (b) a declaration that the Project exceeded the defined production capacity in Table 6 or, alternatively, an order that the issue of the project's production capacity be remitted to the EAO to reconsider given the infrastructure investment, equipment, operational plan and size of the proposed quarry and its reserves; and (c) to quash any licenses, leases, permits or other types of authorizations provided to Lehigh for the project, the approval of which should have been subject to an environmental assessment.

The British Columbia Supreme Court, in a decision reported at [2011] B.C.T.C. Uned. 572, applied the reasonableness standard of review and dismissed the application, holding that the meaning of "production capacity" in Table 6, when properly informed by both the purpose and context of the Regulation and the Environmental Assessment Act, referred to the permitted and intended levels of the project's production. The Friends of Davie Bay appealed.

The British Columbia Court of Appeal dismissed the appeal.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - A proponent of a quarry did not have to seek an environmental assessment unless its production capacity exceeded 250,000 tonnes per year (Reviewable Projects Regulation, Part 3, Table 6) - A proposed quarry had the ability to produce in excess of 250,000 tonnes, but intended to produce only 240,000 tonnes - Opponents of the quarry sought an environmental assessment - The Environmental Assessment Office (EAO) concluded that "production capacity" in Table 6 referred to permitted and intended levels of production and recommended that an assessment not be ordered - The Minister of Environment accepted the recommendation - The opponents sought judicial review - The applications judge applied the reasonableness standard of review and affirmed the EAO's decision - The opponents asserted that, inter alia, the interpretation of "production capacity" was a question of "true jurisdiction" as revolution of the issue bore directly upon whether the EAO had jurisdiction to decline to perform an assessment - The British Columbia Court of Appeal applied the Dunsmuir analysis and affirmed that the decision was reviewable on the reasonableness standard - The interpretation question bore upon whether the quarry was deemed reviewable by the combined effect of the Act and the Regulation - It had no bearing on the source of the EAO's authority to interpret its home statute or otherwise apply the Act and Regulation to the facts - The issue involved the interpretation of an enactment closely connected to the EAO's function and so, in one sense, involved the determination of whether it had authority or jurisdiction to determine whether the quarry was reviewable - However, it was not one of the "narrow or exceptional" questions that concerned true jurisdiction or vires - See paragraphs 16 to 30.

Administrative Law - Topic 3210

Judicial review - General - Jurisdictional issues - [See Administrative Law - Topic 3202 ].

Pollution Control - Topic 1805

Environmental assessments or impact studies - General - Determination of whether hearing or study required - General - A proposed quarry had the ability to produce in excess of 250,000 tonnes (the threshold limit before having to obtain an environmental assessment (Reviewable Projects Regulation, Part 3, Table 6)), but intended to produce only 240,000 tonnes - Opponents of the quarry sought an environmental assessment - The Environmental Assessment Office (EAO) concluded that "production capacity" in Table 6 referred to permitted and intended levels of production and recommended that an assessment not be ordered - The Minister of Environment accepted the recommendation - The British Columbia Court of Appeal affirmed that the EAO's decision was reasonable - This proponent-centred, self-monitoring approach to regulatory compliance created a loophole - A proponent could overbuild its infrastructure and equipment which would allow for future increases to levels of production well beyond the initial declared production capacity - Under s. 8(1)(b) of the Regulation, the proponent could then "modify the existing project" and produce well in excess of 250,000 tonnes, increasing the detrimental impact on the environment without an assessment - However, when the legislative scheme was considered as a whole, along with the other relevant legislation, the EAO's interpretation was not rendered unreasonable by legislative frailty or a loophole - Further, one could not simply look at the words "production capacity in excess of 250,000 tonnes/year" - The section set out in what context and time frame (during operations) the production capacity was to be determined and how much (250,000 tonnes) it could produce in that time frame - To read in a requirement for an assessment of every project to determine the potential maximum production capacity was impractical and inconsistent with the means through which the legislation contemplated achieving its object - The process balanced the need to conduct assessments in warranted circumstances against the existence of other safeguards, the impracticality of assessing every project as a matter of course, and the interests of economic development - See paragraphs 31 to 48.

Pollution Control - Topic 1806

Environmental assessments or impact studies - General - Determination of whether hearing or study required - Judicial review - [See Administrative Law - Topic 3202 ].

Pollution Control - Topic 1842.6

Environmental Assessments or impact studies - Environmental assessment legislation - Interpretation - Particular phrases - "Production capacity" - [See Pollution Control - Topic 1805 ].

Pollution Control - Topic 1850

Environmental assessments or impact studies - Environmental assessment legislation - When study required - [See Pollution Control - Topic 1805 ].

Pollution Control - Topic 1852

Environmental assessments or impact studies - Environmental assessment legislation - Judicial review - [See Administrative Law - Topic 3202 ].

Words and Phrases

Production capacity - The British Columbia Court of Appeal considered the meaning of this phrase as used in Table 6, Part 3 of the Reviewable Projects Regulation, B.C. Reg. 370/2002 - See paragraphs 31 to 48.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, appld. [para. 16].

Georgia Strait Alliance et al. v. Canada (Minister of Fisheries and Oceans) et al. (2010), 379 F.T.R. 183; 2010 FC 1233, varied (2012), 427 N.R. 110; 2012 FCA 40, dist. [para. 18].

David Suzuki Foundation v. Canada (Minister of Fisheries and Oceans) - see Georgia Strait Alliance et al. v. Canada (Minister of Fisheries and Oceans) et al.

Environmental Defence Canada et al. v. Canada (Minister of Fisheries and Oceans) (2009), 349 F.T.R. 225; 2009 FC 878, dist. [para. 18].

R.K. Heli-Ski Panorama Inc. v. Glassman et al., [2005] B.C.T.C. 1622; 2005 BCSC 1622, affd. (2007), 234 B.C.A.C. 248; 387 W.A.C. 248; 2007 BCCA 9, refd to. [para. 19].

Nlaka'pamux Nation Tribunal Council v. Griffin et al., [2009] B.C.T.C. Uned. 1275; 2009 BCSC 1275, refd to. [para. 20].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 23].

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Nolan et al. v. Superintendent of Financial Services (Ont.) et al., [2009] 2 S.C.R. 678; 391 N.R. 234; 253 O.A.C. 256; 2009 SCC 39, refd to. [para. 26].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. (2011), 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 27].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 31].

Information Commissioner (Can.) v. Canada (Minister of National Defence), [2011] 2 S.C.R. 306; 416 N.R. 105; 2011 SCC 25, refd to. [para. 33].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 34].

Labrador Inuit Association v. Newfoundland (Minister of Environment and Labour) (1997), 155 Nfld. & P.E.I.R. 93; 481 A.P.R. 93; 152 D.L.R.(4th) 50 (Nfld. C.A.), appld. [para. 35].

Statutes Noticed:

Environmental Assessment Act Regulations (B.C.), Reviewable Projects Regulation, B.C. Reg. 370/2002, Part 3, Table 6 [para. 12].

Reviewable Projects Regulation - see Environmental Assessment Act Regulations (B.C.).

Authors and Works Noticed:

Cotton, R., and Emond, D.P., Environmental Impact Assessment, in Environmental Rights in Canada (1981), p. 247 [para. 34].

Counsel:

D.G. Perry and D.L. Rusnak, for the appellant;

N.E. Brown, for the respondent Her Majesty The Queen in Right of the Province of British Columbia;

R.A. Skolrood and C.G. Proudfoot, for the respondent Lehigh Hanson Materials Ltd.

This appeal was heard at Vancouver, British Columbia, on January 18, 2012, by Saunders, Lowry and Bennett, JJ.A., of the British Columbia Court of Appeal. Bennett, J.A., delivered the following reasons for judgment for the court on January 29, 2012.