A judgement from the Supreme Court of British Columbia has ruled against the Friends of Davie Bay Society in their attempt to force an environmental assessment for a proposed limestone quarry on Texada Island.
Justice Peter Voith ruled in the decision that the Environmental Assessment Office’s (EAO) interpretation of the rules regarding compulsory assessments was reasonable and that as the production capacity of the proposed quarry from Lehigh Hanson Materials Limited is under that necessitating an assessment, an assessment is not required. The judge also found that the society is responsible for paying the respondents’ (Lehigh Hanson and the attorney general) court costs.
The ruling is in response to a challenge filed by the society in July 2010 attempting to force an environmental assessment of the project. The society argued that the planned infrastructure for the operation far exceeds the declared annual production, which determines the necessity of an environmental assessment. They are concerned about the environmental stability of the area. They asked that the leases to Lehigh Hanson be revoked and the permit for the operation withdrawn pending a comprehensive assessment.
“First of all the reaction is deep disappointment,” said society director Richard Fletcher. “It means any company in the province can then put in huge infrastructure and essentially play the legal game and the courts and the Environmental Assessment Office will do nothing. So if the legal decision is allowed to stand it’s a very bad precedent for BC in general.”
Any mining project with a proposed production of over 250,000 tonnes annually is automatically required to undergo an environmental assessment. Lehigh Hanson maintains that the quarry’s annual production will be just under that benchmark and therefore the project does not require an assessment. The society believes it is the potential production of the operation and not the declared production that should determine whether an assessment is necessary.
Friends of Davie Bay lawyer David Perry maintains that the current guidelines for mandatory environmental assessments leave open a loophole where a company can obtain a permit for mining under 250,000 tonnes per year, build infrastructure that far surpasses that and then apply to increase its output per year, still without requiring an assessment.
“I thought we’d made a good pitch,” said Perry. “The court was really concerned about that apparent loophole in the hearing but ended up deciding that there’s a reason there’s a hard number in the act.”
For Perry, one of the more surprising aspects of the decision involved the judge deeming that the standard of review for interpreting the guidelines need only be “reasonable” rather than “correct.” This limited the scope of the judgement and, rather than looking at the guidelines themselves, allowed the court to instead decide whether the EAO’s interpretation of the guidelines was reasonable, rather than correct.
In the judgement Voith writes that with many interested parties needing “transparent and readily understood guidelines” their needs “cannot realistically be achieved if...a detailed consideration of the myriad unspecified and hypothetical factors that may be relevant to the ‘production capacity’ of any given project” is required. Therefore the judge declared himself “satisfied that the EAO’s interpretation...is reasonable.”
The society, supported by West Coast Environmental Law, has instructed its lawyers to file an appeal.
Lehigh Hanson could not be reached for comment.
